The Volokh Conspiracy

Like my co-conspirators, I believe the Necessary & Proper Clause provides the strongest basis for the constitutionality of the individual mandate.  I“m inclined to agree with Ilya nad Randy, rather than Orin, but I believe it’s a close call.

The constitutional argument, as has been rehearsed in this space before,  is that that mandate is a “necessary and proper” means of facilitating some of the regulations of health insurance markets contained in the recent health care reform legislation that are themselves constitutional exercises of the commerce power.   But is the individual mandate, as enacted, really a  “necessary” part of health care reform?  I am not so sure.

An individual mandate is intended to mitigate the economic effects of other regulatory measures contained in the health care reform legislation, such as the prohibition on insurers excluding coverage for preexisting conditions, and prevent insurance premium increases due to adverse selection.  The fear is that healthy people will rationally decline to purchase coverage until they are sick, and that this will cause health insurance premiums to increase, which will cause more health people to opt out, and so on.  By requiring  all Americans to purchase health coverage, the mandate prevents adverse selection and keeps healthier (and cheaper to ensure) people in the insurance pools.  At least that is how it works in the theory.

A sufficiently stringent individual mandate could well eliminate the adverse selection problem, but that is not what Congress enacted.  Instead, Congress enacted a mandate that does not solve the adverse selection problem.  For many Americans, the penalty for failing to purchase health insurance will remain substantially below the cost of purchasing a federally approved health insurance policy.  This is one of the reasons no one expects health care reform to achieve universal coverage.  This is also why the individual mandate is expected to generate substantial revenue from the imposition of the penalty — which is convenient for those who wish to argue that the mandate is a proper exercise of the taxing power.  This is also a reason why the health care reform legislation will not be as effective at controlling health insurance costs as some hope.

What this means is that it is hard to argue that the individual mandate Congress adopted is really “necessary” to the success of health care reform.  If Congress believed eliminating adverse selection were absolutely essential to the success of reform, it could have adopted a tougher mandate.  It did not.  Instead it adopted a mandate which helps on the margin, but does not eliminate the economic consequences of other measures, such as the bar on excluding preexisting commissions, and adverse selection will continue.

Does this matter in the current litigation?   The Necessary & Proper Clause has rarely (if ever) been interpreted by federal courts to limit Congress only to those measures which are truly necessary to carry into execution other powers.  So even if the mandate is not “necessary,” it may still be “necessary and proper,” and thus constitutional.  But if the mandate is not truly necessary for health care reform to work — that is, if (as enacted) it cannot hope to fix the problem it was ostensibly adopted to fix —  I think that the argument for its consitutionality is, on the margin, somewhat weaker.

My law school friend Allison Leotta, a federal prosecutor who specializes in sex crimes, is blogging about each episode of Law & Order: SVU to explain what in each episode was realistic and what was not. Allison also has a new novel out with Simon & Schuster, The Law of Attraction, about, well, a Harvard Law School graduate who becomes a federal prosecutor specializing in sex crimes. 

Congratulations to Randy Barnett in particular for the new Florida decision refusing to dismiss the challenge to the individual mandate. The language the judge uses at various points in the opinion very closely resembles the language Randy has used in framing the challenge. That is a major accomplishment. 

Indeed, reading the opinion, I had to wonder if Judge Vinson and/or his law clerk(s) read the Volokh Conspiracy. For example, there is Footnote 18:

See, e.g., Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, N.Y.U. J.L. & Liberty (forthcoming), at 27 (stating that the argument for the penalty being justified under Congress’s broad taxing authority is based on a “radical” theory that, if accepted, would authorize Congress “to penalize or mandate any activity by anyone in the country, provided it limited the sanction to a fine enforced by the Internal Revenue Service,” which would “effectively grant Congress a general police power”). 

While citing Randy’s work wouldn’t necessarily be a sign of reading the blog, it’s notable that Randy posted about that article just a few weeks ago, on September 22nd, the date the draft was posted on SSRN. It’s of course possible that the judge learned about the article some other way, but I wouldn’t be surprised to learn that Judge Vinson or his law clerk read it here first.

As to the merits of Judge Vinson’s opinion, I found it a bit frustrating. In particular, it seems to me that Judge Vinson’s opinion never actually addresses the necessary and proper argument that both Ilya and I agree is the best argument in favor of the constitutionality of the mandate against the claim that it is beyond the scope of Article I power. At page 61, Judge Vinson insists that he is familiar with the cases, and he announces that based on his knowledge this is a hard question. Oddly, though, Judge Vinson doesn’t actually articulate the legal standard offered in those cases and explain why those cases don’t answer the question here. 

I find that pretty frustrating. If you’re going to write a 65-page opinion on a legal issue, why not actually discuss the legal standard and explain how it applies to the facts rather than just insist that if you had done so it would have been clear that this was a hard issue? Judicial opinions are supposed to show their work, not just express a degree of certainty as to whether they think issues are hard. Or so it seems to me, anyway.

There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate brought by 20 states and the National Federation of Independent Business. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts claims that the lawsuits against the mandate are either frivolous or clearly precluded by existing precedent. Even the recent Michigan district court ruling upholding the mandate conceded that it was a case of “first impression” (although the judge also tried to argue that the mandate ultimately does fit under current doctrine).

I. Judge Vinson Rules that the Mandate is Not a Tax.

Second, Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty, a point that I emphasized in my amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law professors:

Because it is called a penalty on its face (and because Congress knew how to say “tax” when it intended to....), it would be improper to inquire as to whether Congress really meant to impose a tax. I will not assume that Congress had an unstated design to act pursuant to its taxing authority, nor will I impute a revenue-generating purpose to the penalty when Congress specifically chose not to provide one. It is “beyond the competency” of this court to question and ascertain whether Congress really meant to do and say something other than what it did.

As the Supreme Court held by necessary implication, this court cannot “undertake, by collateral inquiry as to the measure of the [revenue-raising] effect of a [penalty], to ascribe to Congress an attempt, under the guise of [the Commerce Clause], to exercise another power.” See Sonzinsky, supra, 300 U.S. at 514. This conclusion is further justified in this case since President Obama, who signed the bill into law, has “absolutely” rejected the argument that the penalty is a tax.... To conclude, as I do, that Congress imposed a penalty and not a tax is not merely formalistic hair-splitting. There are clear, important, and well-established differences between the two. See Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779–80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [penalties] are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra, 518 U.S. at 224
(“‘a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,’” whereas, “if the concept of penalty means anything, it means punishment for an unlawful act or omission”).

Notice that at least in this instance, President Obama’s preenactment claims that the mandate is not a tax have come back to bite him. 

The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal). Judge Vinson concluded that he had to resolves the tax issue at this early stage of the litigation in order to address the federal government’s claim that, because this was a tax case, the court lacked jurisdiction under the Anti-Injunction Act. 

II. The Commerce Clause and Necessary and Proper Clause Arguments.

The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

Vinson’s analysis of the Commerce Clause precedents (pp. 62–64 of his opinion) is very similar to my discussion of them in our amicus brief (Part I), though I don’t claim any direct influence. As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it..... It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.

Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing a trend from the previous two cases), dismissed two weak federalism-related claims put forward by the state plaintiffs, and refused to dismiss their claim that the funding provisions of the act violated constitutional restrictions on “coercion” of states through conditional federal spending grants. Vinson concluded that this latter argument was just barely strong enough to get to the summary judgment stage. For reasons I may blog about later, I believe that the states’ coercion argument is correct under the text of the Constitution, but highly unlikely to prevail under current Spending Clause doctrine.

Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs. 

UPDATE: Orin Kerr asks why Judge Vinson didn’t seriously address the federal government’s Necessary and Proper Clause argument, other than to say that the relevant precedents don’t cover the issues raised by this case. It’s a reasonable question. I agree that he should have focused on it more. On the other hand, it’s important to remember that this was merely a motion for dismissal and he only needed to consider the argument to the extent of showing that the issue can’t be clearly and easily resolved in the federal government’s favor. Moreover, the federal government’s own brief in favor of dismissal gives short shrift to the Necessary and Proper argument (less than 1 page buried near the end of a 50 page brief). The Justice Department instead emphasizes the Commerce Clause and Tax Clause arguments, both of which Vinson considers at length. I suspect Vinson also believed that much of what he said in reference to the Commerce Clause issue also applies to the Necessary and Proper Clause. The opinion (pp. 62–64) seems to consider the two issues in tandem, though this point is not as clear as it should be. In sum, it seems to me that neither Judge Vinson nor the Obama Justice Department shares my and Orin’s view that this is the federal government’s best argument.

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward:  the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

Because I leave for my lecture in less than an hour, I cannot do full blog post on the decision. But here is a statement that will appear on healthcarelawsuits.org.

In its “talking points” today, the White House claims that the 21 state attorney’s general challenging the constitutionality of the health care reform act are “opportunistic politicians . . . wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.” Today’s ruling by a federal district court judge officially repudiated this claim. 

In denying the government’s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.” This is because of the unprecedented nature of the government’s claim of power. As Judge Vinson explained, all previous commerce clause cases involved the regulation of “voluntary undertaking[s]” or activity. But “in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.” 

This decision now join’s District Judge Henry Hudson’s ruling in Virgina refusing to dismiss the challenge to the individual mandate. In both Virginia and Florida we now move to a decision on the merits. Given how well both judges understood the constitutional novelty of imposing economic mandates on the people, there is reason to be cautiously optimistic that they will find the individual insurance mandate to be unconstitutional. But, however the district courts rule on this case, their reception of the arguments made by the state attorneys general foretell that the ultimate decision will be made by the U.S. Supreme Court.

Of course, Judge Vinson also, quite correctly wrote this: “Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper.’ There may be a first time for anything.” So stay tuned. Next up: oral argument on the motion for summary judgment in the Virginia AG lawsuit, followed by briefing the motion for summary judgment in Florida.

Judge Roger Vinson of the Northern District of Florida has issued a decision refusing to dismiss the constitutional challenge to the Obama Administration’s health care legislation. You can read the decision here, and more information here. On the Commerce Clause issue, the court said:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Of course, to say that something is “novel” and “unprecedented” does not necessarily mean that it is “unconstitutional” and “improper.” There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.

 I represent an individual in a separate lawsuit challenging the Individual Mandate.

Today or tomorrow, we are expecting a ruling on the government’s motion to dismiss the lawsuit against the Patents Protection and Affordable Care Act in Florida district court. Someone sent me what purports to be the “talking points” memo being circulated by Jeff Cruz of the White House “Office of Public Engagement.” I figured that I would do my part by providing these talking points directly to the public without any filter. Given its substance, there is no reason to question its authenticity, and it will enable you to anticipate the government’s reaction to the decision. There is nothing at all surprising, scurrilous, or embarrassing here (except maybe calling these “talking points”), and the memo does provide an overview of some of the other cases now pending,

Of course, there is the continued refrain that all legal challenges to the Act are “frivolous,” a claim even law professors who have been following these suits no longer make. (For my take on why the lawsuits are not frivolous see here.)

In his summaries of the lawsuits, Mr. Cruz fails to mention that the Virginia lawsuit survived the government’s motion to dismiss (as did some counts in the Michigan lawsuit)–which constituted a legal ruling that the challenge was not frivolous–and that the Michigan lawsuit found there was standing to challenge the law.

Also, Mr. Cruz writes “The new law doesn’t work without this requirement,” which is the government’s position as to why it is “necessary” under the Necessary and Proper Clause. But if that claim is accepted, and the mandate is found to be “unnecessary” under existing doctrine, or is otherwise improper, then given the absence of a severability clause, the regulations imposed on the insurance clause should also fall. 

[NOTE: I have deleted the phone number and a portion of the return email address of Mr. Cruz]

CONFIDENTIAL.

From: Cruz, Jeffrey N. [mailto:____@__.eop.gov]
Sent: Thursday, October 14, 2010 12:40 PM
Subject:

Friends,
Today we are expecting a decision in Florida on whether a legal challenge to the Affordable Care Act can move forward. As of today, three legal challenges against the Affordable Care Act have been decided by federal district courts, and all three cases have been dismissed. Attached and below you will find background information and talking points on these legal challenges.
Jeff

TALKING POINTS

· Thanks to the health care law, Americans no longer have to worry about being denied coverage because of a pre-existing condition, being dropped from insurance or going bankrupt if they get sick. If the plaintiffs get their way, it will all be undone.
· Judges in Maryland, California, and recently Michigan have dismissed cases challenging the constitutionality of the Affordable Care Act.
· The people pushing these cases are politically motivated and outside of the legal mainstream.
· Five of the politician-plaintiffs in these lawsuits are or were running for higher office at some point during the 2010 election cycle.

Nevada Example:
· Nevada Attorney General Catherine Cortez Masto called the legal challenge “futile,” and did not join the lawsuit.
· In an unprecedented move, Nevada Governor Jim Gibbons protested the Nevada AG’s refusal to join a lawsuit by issuing an executive order naming an “all-volunteer” legal team to challenge the law.
· At the time Governor Gibbons was locked in a reelection primary race, which he lost. 

[Las Vegas Review Journal, 8/6/10]
· These irresponsible and partisan suits will cause real harm to real people. The Affordable Care Act has already helped millions of Americans, their families, and their businesses.

This law has:
- ensured that kids with cancer have access to coverage;
- given tax-credits to small-businesses that provide insurance to their workers;
- allowed recent college graduates looking for jobs to stay on their parents plans;
- sent checks to seniors to help pay for their prescriptions.

Individual Mandate:
· This is about individual responsibility, putting an end to free-riders and making sure everyone pays their fair share.
· American families shouldn’t have to shoulder the additional cost of the uninsured. Right now, the average American family with insurance pays over $1,000 a year in higher premiums to cover the cost of care for the uninsured.
· The law will ease the cost burden on those who have insurance and make it more affordable for those who don’t by providing financial help to families earning up to eighty-eight thousand dollars a year.

Overturning the Individual Mandate:
· The new law doesn’t work without this requirement. People need to take responsibility for their health coverage so that we can rein in costs and provide access to insurance for everyone including those with pre-existing conditions.
· The minimum coverage requirement prevents people from abusing the system, and procrastinators from jacking-up premiums. Allowing people to delay getting insurance until they are sick in new non-group exchanges will increase premiums by 27 percent in 2019.

Court Cases
At a time when states are making tough choices about budget cuts, opportunistic politicians are wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.
· The Attorneys General, Governors, and state representatives named in these lawsuits are attempting to overturn more than two hundred years of well-established legal precedent.
· The Coverage Provision is absolutely constitutional. Last week a Michigan Federal Court judge rejected a challenge to the coverage requirement, ruling that the law was within Congress’ constitutional right to regulate interstate commerce.

BACKGROUND: LEGAL CHALLENGES

As of October 13, three cases have been decided by federal district courts, and all three cases have been dismissed. The plaintiffs include: four Republican governors, 15 Republican state attorneys general, 17 right-wing advocacy groups.

Maryland District Court — July 28:
The Outcome: The Court dismissed the challenge
The Challenger: Several physicians opposed to “socialized medicine.”
· This case, Anderson v. Obama, was swiftly appealed to the Fourth Circuit Court of Appeals
· September 8, the Fourth Circuit Court of Appeals rejected the appeal and affirmed the District Court’s dismissal.

California District Court – August 27:
The Outcome: The Court dismissed the challenge
The Challenger: The Pacific Justice Institute
· The Court held that the Institute “already provides health insurance to its employees,” who therefore may well be in compliance with the personal responsibility provision when it takes effect in 2014. Therefore, they cannot point to a “threatened or actual injury” and have no “standing” to bring the suit.
· This decision, Baldwin v. Sibelius, has been appealed to the Ninth Circuit Court of Appeals.

Michigan District Court – October 7:
The Outcome: The Court dismissed the challenge
The Challenger: The Thomas More Law Center
· The Court upheld the individual mandate or personal responsibility provision. The Judge agreed that, in order to guarantee insurance protection for all, even those with pre-existing conditions, a personal responsibility provision is needed to prevent additional “cost-shifting” and “even higher premiums,” and to avoid “driving the insurance market into extinction.”
· Thomas More Law Center v. Sibelius, will be appealed to the Sixth Circuit Court of Appeals.

Virginia District Court — Pending:
The Outcome: In Progress – October 18 oral arguments
The Challenger: Virginia Attorney General Kenneth Cuccinelli
· October 18, the Court will hear oral arguments as to the claim that personal responsibility provision is unconstitutional, and therefore the entire health reform law should be struck down.
· The Justice Department will argue that Cuccinelli’s claim has no legal basis and should be dismissed, in line with the Michigan Court’s October 7 decision.

Florida District Court — Pending:
The Outcome: In Progress — October 14 decision to on DOJ motion to dismiss
The Challengers: 21 Republican state attorneys general and governors (Full list below)
· September 14, oral argument was heard on Justice Department’s motion to dismiss the case, Florida et al. v. DHHS et al. The Florida District Judge has promised a decision on the motion October 14.
· If the judge permits some or all of the attorney generals’ claims to proceed, there will be further proceedings and a final decision later this year or early next year.
· This case is notable because the attorneys general challenge, not only the individual mandate or personal responsibility provision, but also the expansion of Medicaid coverage to all adults up to 133% of the federal poverty line, and its establishment of “exchanges” for persons not covered by employer-sponsored group health plans. 

Jeff Cruz
Associate Director
White House | Office of Public Engagement
202-___-____
___@___.eop.gov

The new Princeton Review rankings state that George Mason has the “most conservative students” “based on student assessment of the political bent of the student body at large”.

My impression over the years has been that the student body at GMU is more or less evenly split between liberals and conservatives, which I’m pretty sure would make the student body much less conservative than at schools like Regent or BYU. 

So I decided to do an informal, optional, and anonymous survey of the students in my Con Law I section, who represent about half of our 2L day class. Here are the results:

Q Which of these is closest to your political views?

1. Green 0
2. Very Liberal 5
3. Liberal 10
4. Moderately Liberal 9
5. Moderate 7
6. Moderately Conservative 11
7. Conservative 3
8. Very Conservative 4
9. Libertarian 6
10. Other 0 

Note that there are more “very liberal” students than “very conservative” students, and way more “liberal” than “conservative students. And even if you put “libertarian” students into the conservative camp (unfairly, in my opinion), you still wind up with a 24–24 left-right tie.

Some students suggested to me that there might be some self-selection of liberal students into my section, and that their class year might be more liberal than average. Even if one or both of these things are true (and I have no way of measuring them), it’s unlikely that they have such a large effect on the results that they undermine the general point, that GMU students aren’t nearly as conservative as what Princeton Review would suggest, and indeed are reasonably well-balanced ideologically.

So why, if P.R. is accurate, do students perceive their colleagues as being so conservative? I can think of at least two plausible explanations. First, unlike the runner-up schools (Regent, BYU, Ave Maria, Samford), GMU is neither a religious school, nor is it located in a conservative part of the country. Rather, the school is in Arlington, a liberal county, and next to D.C., an even more liberal jurisdiction. Our students often come from liberal universities in the Northeast and Mid-Atlantic. So compared to what one might expect from a secular law school in a liberal part of the world, the student body seems quite conservative. And indeed, there is no other school on P.R.‘s top 10 list that is not either religious, located in a conservative region, or both.

Second, some (small) fraction of GMU students come here precisely because they prefer a non-overwhelmingly-left-wing political environment, which is what they would get at every one of the schools we primarily compete with for students. These students are disproportionately likely to speak up in class, and thus make the student body seem more conservative than it really is. 

Intrusive business regulations have a disproportionately negative impact on the poor and members of minority groups, who lack the political influence that whereby wealthy corporations and politically well-connected people are able to obtain special government favors. Nobody has done better scholarship on this point than Volokh Conspiracy blogger David Bernstein. The historical examples of the abuse of licensing laws and other regulations to oppress racial minorities are legion, and depressing. But they aren’t surprising. The lesson of public choice theory is that when government can redistribute wealth or opportunities, that power will fall into the hands of politically well-connected groups, who use it to their own advantage at the expense of less favored groups.

The treatment of the Chinese in California is a distressing example. At the California Constitutional Convention of 1878 — organized by the anti-Chinese Workingmen’s Party — many delegates spoke of their readiness to exploit government’s regulatory powers to keep out the Chinese workers who competed with white labor. As one delegate said, the Chinese laborer was

Continue reading ‘Racial Impacts and Business Regulations’ »

The Yes on 19 website has posted a petition by law professors in support of California proposition 19, which would decriminalize marijuana in that state. Among the signers are six of the Volokh Conspirators — Jonathan Adler, Randy Barnett, David Bernstein, David Post, Sasha Volokh, and myself. There are also many prominent non-VC signers, including Erwin Chemerinsky, Alan Dershowitz, Paul Butler, and David Friedman (well-known law and economics scholar and son of Milton):

As law professors at many law schools who focus on various areas of legal scholarship, we write this open letter to encourage a wholesale rethinking of marijuana policy in this country, and to endorse the Tax and Control Cannabis 2010 initiative—Proposition 19—that will be voted on in November in California.

For decades, our country has pursued a wasteful and ineffective policy of marijuana prohibition. As with alcohol prohibition, this approach has failed to control marijuana, and left its trade in the hands of an unregulated and increasingly violent black market. At the same time, marijuana prohibition has clogged California’s courts alone with tens of thousands of non-violent marijuana offenders each year. Yet marijuana remains as available as ever, with teens reporting that it is easier for them to buy than alcohol across the country.

Proposition 19 would remove criminal penalties for private use and cultivation of small amounts of marijuana by adults and allow California localities to adopt—if they choose—measures to regulate commerce in marijuana. Passage of Proposition 19 would be an important next step toward adopting an approach more grounded in reason, for California and beyond.

Our communities would be better served if the criminal justice resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected toward addressing unsolved violent crimes. In short, the present policy is causing more harm than good, and is eroding respect for the law.....

This country has an example of a path from prohibition. Alcohol is subject to a regulatory framework that is far safer in every respect than the days of Al Capone. Just like the State of New York did when it rolled back Prohibition 10 years before the nation as a whole, California should show leadership and restore respect for the law by enacting the Tax and Control Cannabis 2010 initiative this November.

Unfortunately, lifting the state ban on marijuana possession will not fully legalize marijuana in California. The federal ban that the Supreme Court upheld in Gonzales v. Raich will remain. So far, the Obama Administration has not kept the president’s campaign promise to stop federal raids on purveyors of medical marijuana in states where it is legal, and the administration almost certainly would not cooperate with the much broader legalization envisioned by Proposition 19.

On the other hand, federal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.

I’ll be heading to New York tomorrow to be filmed for John Stossel’s great show on Fox Business.  He’s doing a show on “Unintended Consequences” and I’ll be talking about the unintended consequences of credit card and other consumer credit regulation.  My understanding is that it will run a couple of times over the weekend.

I’m currently working on a case in why my clients were forced to give up their right to vote in exchange for a building permit.

Yes, really. In California, homeowners have a constitutional right to vote on certain kinds of property taxes called “assessments” (which differ from taxes in that they pay for improvements to a particular neighborhood and only residents in that neighborhood are required to pay). The state constitution says homeowners have the right to vote on whether to have an assessment and how much the assessment should be.

But in Carlsbad, they’d rather you not. There, if you apply for a building permit for a construction project that costs a certain amount, the city requires you to first pay the assessment up front. This is, of course, illegal, since there hadn’t been a vote. But also, if you can’t afford the assessment ($115,000 in my clients’ case) you can sign a handy waiver giving up your right to vote on assessments in the future — and the waiver runs with the land to any subsequent owner of the land!

Sadly, the trial court dismissed the case, saying it was brought both too early and too late (!) — and we appealed to the Ninth Circuit. It was a fascinating argument and you can read the briefs here. (1, 2, 3, 4, 5.) It’s been 18 months since the argument, and we’re hoping for a decision soon.

But this is only an extreme example of a common phenomenon called “exactions.” Government often requires property owners to pay for permission to develop their property, even though the right to develop one’s property is, at least to some degree, inherent in ownership. In Nollan v. California Coastal Commission, the Supreme Court said that “the right to build on one’s own property — even though its exercise can be subjected to legitimate permitting requirements — cannot remotely be described as a ‘governmental benefit.’”

Yet government routinely forces property owners to give up land or cash to fund various pet projects, if they want a building permit. The courts have said that this is allowed only in certain narrowly limited circumstances, but local officials continue to do it. Among the most notorious recent examples was the case of San Francisco’s San Remo Hotel, which was forced to pay half a million dollars for permission to convert to a night-to-night tourist hotel, when it had been a long-term residential hotel. As California Supreme Court Justice Janice Brown observed in that case, what happens in cases like this is that the government basically confiscates the property and then sells it back to the owner in exchange for certain concessions. And if government can do that — if it can force people to give up money or land or easements in exchange for the right to develop their property, then why can it not force a person to give up the right to vote?

Update: Oops. Broken links fixed.

Tomorrow, Thursday, I will be giving the 6th Annual Friedrich A. Von Hayek Lecture at NYU School of Law. The lecture is open to the public and will begin at 6pm at Vanderbilt Hall, 40 Washington Square South. The title, is “Commandeering the People: Popular Sovereignty and the Health Insurance Mandate.” Richard Epstein, who is now a professor at NYU will be giving the introduction. 1 CLE credit is available. Registration and details on the lecture are here. (If you can’t make it, you can download the paper in which the lecture is based here.) I have spent the past couple days at NYU meeting with students and faculty and have very much enjoyed my time here. 

to endorse what we would now call a “substantive” interpretation of the Due Process Clause was not, as is commonly held, Dred Scott v. Sanford, but rather Bloomer v. McQuewan several years earlier.

Here’s the key language: 

it can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property after he had purchased the absolute and unlimited right from the inventor, and when that property was no longer held under the protection and control of the general government, but under the protection of the state, and on that account subject to state taxation.

The 5th Amendment to the Constitution of the United States declares that no person shall be deprived of life, liberty, or property without due process of law.

The right to construct and use these planing machines had been purchased and paid for without any limitation as to the time for which they were to be used. They were the property of the respondents. Their only value consists in their use. And a special act of Congress, passed afterwards, depriving the appellees of the right to use them certainly could not be regarded as due process of law.

Note the Court’s reliance on due process, even though the more specific language of the Takings Clause was available to it.

The Court’s statement must be counted as dicta, however, because it went on to state that “we forbear to pursue this inquiry, because we are of opinion that this special act of Congress does not and was not intended to interfere with rights of property before acquired.” Nevertheless, the assertion that the origins of substantive due process in the Supreme Court lie solely in Dred Scott, and somehow SDP must have derived from pro-slavery sentiment, is incorrect. (Not to mention the fact that abolitionists were at least as likely as pro-slavery forces to appeal to “substantive due process”, in the former case to support the liberty rights of slaves, especially slaves, like Scott, taken into federal territory).

UPDATE: Arguably, the due process point in Scott was also dicta, because the Court held that Scott, as a person of African descent, had no standing to sue in federal court. And I should have noted that this post was inspired by Tim Sandefur’s post below, discussing myths regarding “substantive due process”–itself an anachronism because no one in the 1850s, or indeed until the 1930s, would have been familiar with the phrase.

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.

I.

Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

Continue reading ‘Two or Three Myths About Substantive Due Process’ »

A commenter asked whether illegal immigrants have the right to earn a living. Obviously they do, as all human beings do, although that has nothing to do with whether they may violate U.S. immigration laws. But it does bring to mind the many ways that government has used immigration restrictions to give economic favors to favored constituents.

Probably the most famous case is Truax v. Raich, a 1915 decision in which the Supreme Court struck down an Arizona law that capped the number of (legal) immigrants a business could employ. That law existed solely to “protect the jobs” of — i.e., bar fair competition with — natives. The state certainly had the authority to regulate industry to protect the public, the Court said, “[b]ut this admitted authority...does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood.... [T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.”

But a recent decision by the Ninth Circuit is more troubling. In the little-noticed case of Sagana v. Tenorio, that court upheld a law of the Commonwealth of Northern Mariana Islands which bars the employment of non-resident aliens in certain jobs, and imposes very severe restrictions on their employment in other jobs. This law exists solely to bar competition in the labor market, not to protect the general public. Yet, the court of appeals allowed this, saying “[t]he CNMI legislature has seen fit to create a temporary class of employees for the purpose of bolstering the CNMI economy, giving job preference to its residents, and protecting the wages and conditions of resident workers.... These are reasonable, important purposes.” This is protectionism, plain and simple, with no connection to advancing public health, safety, or welfare; it is the exploitation of government power to serve the self-interest of resident workers at the expense of non-resident workers and consumers. Sadly, the Supreme Court declined to review the case.

Immigration restrictions aren’t just an economic matter, of course. But the abuse of economic regulations to block fair competition in the labor market by immigrants is a shameful, and common phenomenon.

Libertarians and conservatives often accuse the Supreme Court of dramatically shifting constitutional law in the famous “Switch in Time,” as the result of political pressure brought by President Franklin Roosevelt. This narrative, however, is a little too neat to be true. In fact, as I argued recently in National Review, the major step toward the denigration of economic liberty had already been taken three years earlier, when the Court created the “rational basis” test in Nebbia v. New York.

It’s certainly true that the 1930s (what Auden called “a low, dishonest decade”) saw a profound shift in American constitutional law, but that change is best seen as the climax of a decades-long struggle by Progressives to change constitutional doctrines via interpretation. The Progressives, in fact, were quite explicit about this effort. In a 1924 profile of Oliver Wendell Holmes, Dorsey Richardson wrote that

Holmes came to the bench in 1882, when the transition from individualism to collectivism in England was in progress.... [He] was too learned in the history of the law to be blind to the fact that the socialistic trend in American political thought would finally demand extensive paternal legislation in no uncertain terms; and that when this demand became strong enough serious consequences might follow the failure of the courts to acquiesce.... The necessity for the establishment of a benevolent attitude towards social reform was apparent...[yet] the Constitution was regarded as almost immutable.... No further [Amendment] might be looked for short of a popular upheaval. Next to amendment of the Constitution, the most feasible means of giving validity to new principles was to change the interpretation of the provisions under which the inevitable social legislation would be held invalid. “Liberty of contract” and the broad powers of review assumed by the courts under the 5th and 14th Amendments were the elements which barred the way to reform, — and it is against these interpretations that Justice Holmes’ most significant attacks have been directed.

Holmes and his admirers led an ideological assault on economic liberty that triumphed between 1934 and 1938. While Roosevelt’s “court packing plan” certainly played a role in that shift — and historians such as William Leuchtenburg argue that it was a very important role — I think legal historians like G. Edward White are more convincing in their argument that the “Switch” should be seen as the end point of a longer process of doctrinal change.

Following my earlier post on Justice Harlan appearing before Learned Hand, Roy Englert writes in to point out an interesting story about another appeal with Harlan in front of Judge Hand. It is recounted in Martin Mayer’s biography of Emory Buckner, at page 239:

On appeal in [a particularly complicated case], Harlan wrote a brief 150 pages long [for Buckner, the lead partner of the firm]. When it came to the argument, Judge Learned Hand glowered at Buckner and said, “Is this your brief?”
“Yes, Your Honor,” Buckner said.
“Well, I’m not going to read it. It’s too long.”
Buckner said, “Well, it will be your loss, Your Honor. It’s a very good brief. My assistant wrote it and I put my name on it. ”
In response, the future Justice remembered, Hand threw the document over the bench and onto counsel table with a loud thud of protest. “You can imagine,” Harlan recalled, “how I felt. Then, after the case had been decided, Hand called me in and said, ‘Just wanted to say it was a very good brief.’”

The California federal judge who decided on September 9 that Don’t Ask, Don’t Tell is unconstitutional has now issued an injuction ordering the military to immediately stop enforcing it.  The order:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

The good news for gay servicemembers, and for what our Commander-in-Chief says is a matter of national security, is probably temporary.  The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so.

An official with Puerto Rico’s Justice Department has announced that the Department will propose changes in the island’s firearms laws, to bring them into line with Heller and McDonald. However, two of the proposed changes appear to be unconstitutional:

Torres said the measures will include a requirement that shooting ranges keep logs of how much ammunition their members use and cap the number of bullets each client can fire in target practice at 500 per year....

The House legislation under analysis would require gun clubs to maintain logs that include information relative to the quantity and caliber of the ammunition that shooters use onsite. It would revoke licenses from any such business that does not comply with the legislation....

The measure will also limit the quantity of weapons that a person can possess to take to a gun club.

The round-by-round registration requirement would be enormously burdensome to shooting ranges, and beyond the practical ability of many clubs to implement. The ban on target practice (beyond 500 rounds per year) is contrary to public safety; firearms owners should be encouraged to practice with their firearms, so that they will be more skilled in using them for self-defense, hunting, or any lawful purpose. While courses to achieve basic competence may only involve firing a few dozen rounds, more advanced courses, which might take several days, can easily exceed 500 rounds per person. Moreover, going the range on one’s own once a month, and firing, say 100 rounds at each practice session, is a good way to improve one’s abilities.

The First Amendment equivalent would be a limit on hour many hours a year a person could spend reading at a private library.  

A similar issue is being litigated in Chicago, where a new law mandates that gun owners have safety training, including range time, but prohibits the operation of shooting ranges within the city–even though indoor ranges are well-established and safe throughought the rest of the nation, including in New York City.

I will be discussing the Puerto Rico proposal at 11:20 p.m. ET tonight on NRA News.

Alex Tabarrok has an interesting post about common misperceptions about economics among college students.  (Some of the comments are interesting as well.)  I would be curious to see how much variation there is in answers from students with different backgrounds (e.g. those that held jobs during/after high school, those financing their own educations, those born into wealthier/poorer families, etc.).

Today the U.S. Department of the Interior lifted the moratorium on deepwater oil and gas drilling in the Gulf of Mexico.  As outlined in this memorandum of decision, Interior Secretary Ken Salazar has instructed the Bureau of Ocean Energy Management, Regulation and Enforcement (formerly known as the “Minerals Management Service”) to permit drilling by operators that comply with the relevant regulatory requirements, including new drilling safety rules, and have their CEOs certify to such compliance.  The WaPo reports on the decision here.

UPDATE: I should have added that the lifting of the moratorium does not mean that drilling will automatically resume.  Would-be drillers will have to apply for and obtain permits from BOEMRE, and this could take some time — weeks, if not months.

Granted this morning, Bond v. United States. Question presented: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant’s constitutional argument.

The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peacefu use of a toxic substance. Defendant argues that her particular use (to try to injure her husband’s mistress) was not within the reach of any enumerated congressional power.

Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.

A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, “absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Some lower courts have treated this as dicta but others have not. Whether or not it’s dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned.

On Thursday afternoon I’ll be participating in an AEI Program “What Have They Done? Implications of the Dodd-Frank Act.”  Other participants include our hosts Peter Wallison and Alex Pollack, as well as Adam Levitin, Steve Bartlett, Wayne Abernathy, Ed Pinto, and others.

Registration info is here.

I was just reminded about this item, which I blogged about in 2002, when this blog was but a month old, so I thought I’d repost it. It’s from the “Maxims of Jurisprudence” subdivision (they’ve been codified in California), Civil Code sec. 3546, and it is of course a presumption and not a categorical rule:

Things happen according to the ordinary course of nature and the ordinary habits of life.

Deep, man.

The Princeton Review has just released its 2011 law school guide book, “The Best 172 Law Schools,” which includes rankings based upon extensive student surveys.  According to their press release (cached here), Brown University’s law school ranked number one in the “best professors” survey category.  Congratulations to all our friends on Brown’s law faculty.  (Hat tip: Dan Filler.)

NOTE: On this page, the Princeton Review lists Boston University as having the law school with the “best professors.”  Therefore it is possible that the press release just contains a typo.  Then again, the student survey respondents may well think Brown has great law professors — even better than those at Princeton and Dartmouth.

The American Spectator magazine has a balanced article, by Philip Klein entitled, “Is It Time for a Convention?,” about the pros and cons of calls for an Article V amendments convention. It includes this:

AT THE TIME of the founding, the ability of the states to call a convention to propose amendments was seen as a way to prevent the federal government from becoming too expansive. In essay No. 85 of the Federalist Papers, Alexander Hamilton cited the states’ convention option in his response to critics who feared that Congress would never allow any amendments limiting its power. The Constitution orders that “The Congress shall call a convention” if two-thirds of states demand one, he pointed out, and thus whether to call a convention isn’t up to the federal government. “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” he predicted.

Yet as time went on, people came to see a convention as more nefarious, forming misconceptions about what it might mean, according to new research by Robert Natelson, who recently left his post as a law professor at the University of Montana to join the Independence Institute. Those misconceptions, Natelson says, start with the very name of the proceeding.

“It is not a constitutional convention,” Natelson, who has written two forthcoming papers on the subject, told TAS. “Nobody at the time it was drafted ever called it a constitutional convention. It started to get that name only in the 20th century, as far as I can determine, when that term was applied to it by some people who were opposed to an Article V convention, because they opposed the proposed amendments.”

The Constitution itself refers to a “convention for proposing amendments.”

“It was not until the 1960s, when several conservative groups were seeking a convention to propose amendments in order to reverse some of the liberal Supreme Court decisions, that liberal scholars and activists, like Charles Black of Yale Law School, or Theodore Sorensen, the Kennedy speechwriter, basically made up this idea that what you’re doing is you’re creating a big unlimited constitutional convention that could become a circus,” he said.

Indeed, one reason for conservative suspicions is that liberals themselves have proposed a constitutional convention in order to make it easier to realize leftist policy goals. In 2006, for instance, University of Texas law professor Sanford Levinson wrote a well-received book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). He argued for a convention in which the entire founding document is fair game.

But according to Natelson, there is a difference. While a constitutional convention is called to rewrite the Constitution, an “amendments convention” or “Article V convention” is tailored to a narrow purpose.

“The Founders believed that this method would be used more than has probably been used,” he said. “It was seen precisely as a way of getting constitutional change that an abusive or corrupt Congress would not itself authorize.… To the extent that many people believe today that a Congress is abusing or exceeding its powers, this is precisely the situation that the Founders crafted this provision in the Constitution to serve.”

Critics of the idea contend that once the convention is called, there would be no way to limit its scope. But Natelson argued that there are a number of built-in checks to prevent that from happening.

“The convention is bound by the nature of the call,” Natelson said. “So if it’s been told to propose an amendment forbidding the government from being involved in health care, that is the only issue it may address.”
In Federalist No. 85, Hamilton wrote that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Currently, it would take 34 states to call a convention, and 38 states to ratify an amendment.

Even if a convention passed non-germane amendments, Congress would not even be permitted to submit them to the states for ratification if they went beyond the topic in the initial petitions for a convention. And courts would have to disallow them even if Congress did.

Furthermore, there’s the political check, because if delegates were sent to the convention to address one issue and began to do something completely different, it would make the public back home “furious,” Natelson argued.
And ultimately, any proposed amendment would have to be ratified by three-fourths of state legislatures to alter the founding document.

But the article also presents several sources who object to calling for an amendments convention. It even discusses the Repeal Amendment!

One of the most common ways government violates the right to make a living is through rules that prohibit businesses from charging low prices. Probably the most famous case about this issue is Nebbia v. New York, in which the state of New York, in the depths if the Great Depression, made it illegal to sell milk for low prices. The Supreme Court upheld this law in a decision that basically invented the “rational basis” test.

But there are many similar laws on the books in most cities and states today — laws that do not protect the public, but only protect established companies against competition. Tampa, Florida, for example, requires limo companies to charge at least $20 per hour. Why? Well, some years ago, I asked that question, and the Hillsborough County Public Transportation Commission answered that the restriction exists to “create a balance between the different transportation ‘markets’” so that taxis and limos would “not directly compet[e] against each other. This way, both manage to survive in their respective market area and the ‘balance’ is maintained.”

Balance? Why should the government impose an artificial “balance” in the market if it doesn’t reflect what consumers prefer? What authority does government have to force people to pay more for limo rides so as to protect the taxi companies from having to improve their services? Only if you think government exists to promote the interests of taxi drivers who can’t compete fairly, would you think the government should block mature adults from deciding for themselves what transportation choices to make. Such rules do not even arguably protect the public from fraud or violence or anything; they only exploit government’s coercive power to protect one private interest group against competition from another. That is arbitrariness — when the government decides to use its power simply as an act of will — not lawfulness.
 
Then there’s “predatory pricing” law. The theory goes like this: if one company cuts its prices really low, maybe even below cost (“loss leaders”) it’ll succeed in the market, and other businesses will fail. Then the first company will be a monopoly and jack the price up! The horrors! Thus the law forbids companies from trying to “harm competition” (i.e., succeed) by charging “unreasonably” low prices, and particularly by charging below cost. Loss leaders are illegal, for example, in California.

Of course, a child can see the problem with the theory: the instant the “predator” does raise his prices, the other companies will open their doors again, charge the market rate, and the clever “predatory pricing” strategy will fail. As Frank Easterbrook wrote, when he was a law professor, predatory pricing is “not a very good gamble,” because without some barrier to entry that prohibits the old companies from coming back, there’s no way for such a strategy to work: “it is quite unusual for a firm without a patent to hold a 100% market share and charge a monopoly price for very long.” (Although history books nowadays still often claim that Standard Oil used “predatory pricing” to drive out competition, that turns out not to be true.)

In a case called Brooke Group, the Supreme Court said that a plaintiff accusing a company of “predatory pricing” must not only prove that the “predator” charged low prices, but also that he had a “realistic probability” of recouping the losses incurred from the initial price-cutting. This is an eminently reasonable rule, because in theory, a successful “predatory pricing” strategy must include “recoupment”; without recoupment, price cutting is just price cutting, and that’s good for consumers.

But does antitrust law exist to protect consumers? The federal courts say so, and that is why they adopted the Brooke Group rule. But many state courts disagree. In fact, a case recently decided by the California Court of Appeal refused to adopt the Brooke Group rule precisely on the theory that California’s antitrust laws do not exist to protect the public — instead, they exist to protect “smaller, independent retailers” against having to compete aginst their “more powerful neighbor[s].” The California Supreme Court will soon decide whether to review that case.

In Minnesota a few years ago, the Midwest Oil company charged customers less than cost at its four Minneapolis area gas stations. I don’t know why — seems like a foolish idea to me, but they have the right to sell their gas for whatever they want. (That’s called “liberty.”) Certainly there was no likelihood that this four-station chain would come to monopolize gasoline sales in Minneapolis, which is full of Shells and Mobils. Still, other gas stations (not consumers, of course) complained, and Midwest Oil was assessed a heavy fine.

How exactly did this protect the public? It didn’t. It employed the state’s coercive powers to promote the interests of gas stations that didn’t want to lower their prices. And because Minnesota doesn’t employ the Brooke Group rule, Midwest Oil couldn’t make the argument that it had no actual chance of becoming a monopoly one way or the other.

This is just one of many examples of government violating the rights of business owners to make their own choices about what to do with their property and their liberty, not to protect the general public, but only to protect other businesses against having to compete by lowering prices and improving their products or services.

Update: To clarify, the Midwest Oil case and the California case I refer to are decided under state antitrust laws, as opposed to the federal Robinson-Patman Act. That’s why state courts are not bound by the Supremacy Clause to apply the Brooke Group recoupment rule.

Last month, in International Dairy Foods Association v. Boggs, the U.S. Court of Appeals for the Sixth Circuit struck down Ohio’s regulations barring dairy processors from labeling milk as “rbST-Free,” but upheld the agency’s ability to require disclaimers for some rbST-related product claims, subject to First Amendment constraints.   In the process the decision illustrated how environmental preferences, such as for “organic” food, benefit from constitutional protection of commercial speech, including product labels.

Some milk producers administer recombinant bovine somatotropin (rbST, aka recombinant bovine growth hormone or rbGH) to their dairy cows to increase milk production.  Although there is (as yet) no scientific evidence that the use of rbST poses any health risk to humans, or even that rbST can be detected in milk from treated cows, some consumers prefer to purchase milk from untreated cows.  In response to this concern, some producers (including members of the Organic Trade Association) sought to label their milk products as “rbST-free” or to otherwise indicate that their milk did not come from rbST-treated cows.

The Ohio Department of Agriculture, pursuant to an Executive Order by Governor Ted Strickland, adopted rules governing the such voluntary labeling of milk products.  Specifically, these rules barred the use of  “rbST Free” or equivalent composition claims on milk labels.  In addition, the rules required that any production claims about milk, such as “this milk is from cows not treated with rbST,” be accompanied with a prominent disclaimer noting that the FDA has determined that there is no significant difference between  milk from cows administered rbST and those that have not.  The rules were influenced by, and largely followed, a 1994 FDA guidance on milk labeling.

ODA defended its rules as reasonable measures to prevent false and misleading product claims about milk.  The Sixth Circuit disagreed.  Subjecting the rules to First Amendment scrutiny, albeit under the lesser protection afforded  commercial speech, the court concluded that ban on rbST-related composition claims was more extensive than necessary to serve the state’s interest in preventing false or misleading speech.  The court found there is  a sufficient difference in milk from rbST-treated and non-treated cows to reject ODA’s claim that an “rbST free” label is inherently misleading, and held that any potential consumer confusion could be alleviated by accompanying the claim with anappropriate disclaimer.  The court also concluded that the mandatory disclaimer for production claims was reasonably related to the state’s interest in preventing false or misleading claims, but that some of the specific requirements (such as that the disclaimer appear in the same label panel) were more extensive than necessary.

The Sixth Circuit’s decision is entirely consistent with International Dairy Foods Association v. Amestoy, a 1996 Second Circuit opinion striking down Vermont’s mandatory labeling requirements for milk from cows that have been administered rbST.  Both cases affirm that product labels, while commercial speech, still receive First Amendment protection.  Consumers may or may nor prefer milk from cows that were administered rbST, and producers should be free to use their labels to identify their products as potentially desirable to consumers with particular preferences, but should not be forced to do so.  The government’s role is to ensure that whatever information is disclosed is truthful and not misleading, not to mandate disclosure of product characteristics important to some consumers but not others.

This decision also illustrates a point I made in my post about labeling genetically modified salmon (and in this paper on labeling nanotech products).  Just because a government agency does not mandate disclosure of a particular fact — such as whether milk came from rbST-treated cows or a fish filet came from an AquaBounty salmon — does not mean the information will not be disclosed.  In a competitive market, producers have every incentive to differentiate their products in accord with consumer preferences.  And insofar as some consumers prefer a particular type of milk or salmon, producers of products with the relevant characteristics will inform consumers of these facts.  So long as the failure to disclose a product characteristic will not cause harm to the uninformed consumer, the government should stay its hand.

There’s more on apparent insider trading on Capitol Hill from Deal Journal, Thom Lambert, and Professor Bainbridge.

MORE: The WSJ reports Rep. Brian Baird and others will renew their push to enact the “Stop Trading on Congressional Knowledge Act,” a bill to prohibit insider trading by members of Congress and their staffs.

Along with my former colleague Erik Luna, I’ve just published an article on mandatory mimimum sentences.  The article, which can be downloaded from SSRN here, tries to find common ground on the issue of revising mandatory minimum sentences in the federal criminal justice system.  Here’s the abstract:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment. 

Congress has ordered the U.S. Sentencing Commission to study the issue of mandatory minimums.  The Commission will issue a report on the subject in the not-too-distant future, so the subject of our article is hopefully a timely one.

I was just reading a fascinating old Fourth Amendment decision, United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), and I realized the appeal featured one of my favorite Justices appearing before one of my favorite Judges. John Marshall Harlan II represented the United States as an Assistant U.S. Attorney (back when Emory Buckner was the U.S. Attorney), and the panel decision was by Learned Hand. Cool. 

Counsel for the defendant, a Mr. Leo Klugherz, is slightly less known.

The current issue of The New Yorker has this interesting article on procrastination, which, appropriately, I just read instead of doing actual work I need to finish.

It seems to me that procrastination is rational to the extent we can’t be sure of future events. As uncertainty about future events increases, putting off preparations now for events far in the future begins to make sense. (If the problem might actually go away on its own, ignoring it for now many be the best strategy.) I suppose what has changed is that the modern world is a lot more predictable than the world of the past. It seems that our brains sometimes aren’t wired for a world in which events far into the future are actually pretty predictable, leading us to procrastinate on things like exams, papers, doing our taxes, and the like. 

I’ll be speaking at Yale Law School for the Federalist Society tomorrow night at 6:10. The topic is my forthcoming book, Rehabilitating Lochner. Jack Balkin of Balkinization (and, incidentally, the Knight Professor of Constitutional Law and the First Amendment at Yale) will provide comments. It should be a lively evening.